Raymond v. Davy

Schackno, J. Upon the foregoing papers this motion for an order striking out the answer of the defendant, and for summary judgment in favor of the plaintiff and against the defendant, is granted. The cause of action set forth in the complaint is for merchandise sold and delivered to the defendant by plaintiff’s assignor, G. B. Raymond & Co., a domestic corporation. Attached to the complaint, and made a part thereof, is a schedule setting forth and numbering the respective items of the merchandise claimed to have been sold and delivered, and the agreed price and reasonable value of each of such items. In order to create an issue of such allegations of the complaint the defendant, by a verified answer, was called upon to indicate specifically the items, if any, which he disputes in respect of delivery, reasonable value or agreed price (Civ. Prac. Act, § 255-a); he has failed to do so. The denial, upon information and belief, of each and every allegation of the paragraphs of the complaint in which the foregoing allegations are set forth does not create an issue. (Weinstein v. Ken-Wel Sporting Goods Co., Inc., 231 App. Div. 51; Dairymen’s League Co-op. Assn., Inc., v. Levy Dairy Co., 225 id. 475;International Milk Co., Inc., v. Cohen, 219 id. 308; appeal dismissed, 245 N. Y. 564.) The motion is granted and the answer of the defendant is stricken out, and the clerk of this court is directed to enter judgment in favor of the plaintiff and against the defendant for the sum of $1,002.20, with interest thereon from June 28,1935, together with the costs and disbursements of this action, provided that the plaintiff at the time of the entry of such judgment files in the office of the clerk of this court the original assignment, photostatic copy of which is annexed to the moving papers, from G. B. Raymond & Co. to George B. Raymond, bearing date June 28, 1935.